Drake v. Elewellen & Co.

33 Ala. 106 | Ala. | 1858

STONE, J.

—The Auburn Masonic Female College is a* private corporation, [Dartmouth College v. Woodward, 4 Wheat. 518;] and although the bill of exceptions states that “the charter of the incorporation was also introduced,” we do not find it in the record. Under these circumstances, we have no authority to consider any of the provisions of that aet, in passing on the legal questions presented.—See Pamphlet Acts of 1851-2, p. 359.

[2.] The complaint alleges, the note was made by the •■defendant. The note copied in the bill of exceptions imposes, prima fade, a personal liability on the defendant. See Gillespie v. Wesson, 7 Porter, 461; Tippets v. Walker, 4 Mass. 595; Taft v. Brewster, 9 Johns. 334. That personal liability, however, can be shifted by pleadings and proof. See Lazarus v. Shearer, 2 Ala. Rep. 718; McTyer v. Steele, 26 Ala. 487; Baker v. Gregory, 28 Ala. Rep. 544.

[3.] Under our statute, and the construction placed on it, a defendant who has executed a contract which, prima Jade, charges him personally, and who yet seeks to rebut that primajacie intendment, by showing that, in fact, the contract is that of his principal, must make Ms defense under a sworn plea.—Code, § 2238; Lazarus v. Shearer, 2 Ala. 718; McWhorter v. Lewis, 4 Ala. 198.

To render the defense available under our decisions, it must also appear, that the corporation had authority to hind itself.—Harwood v. Humes, 9 Ala. 659 ; Gillespie v. Wesson, 7 Porter, 454-61; Mott v. Hicks, 1 Cow. 513-36; White v. Skinner, 13 Johns. 307.

Under these rules, neither the third plea, nor the evidence in the record, shows that the corporation “ had the faculty of becoming bound; ” and hence, in these respects, the defense was not made out.

[4-5.] The charge renders it necessary for us to notice .another point. It only referred to the jury the credibility of the evidence; and instructed them, on every hypothesis of whieh the testimony, if believed, was susceptible, to find for the plaintiffs. This was not justified by the state of the proof, all ©f whieh purports to he set out in the record. The bill of exceptions leaves it in doubt, whether the books for whieh the note was given, were purchased at the time the note was given, or whether the defendant had any agency in their purchase. Evidently, if the corporation had no authority to contract a debt, and Mr. Drake assumed to pledge its credit, and himself bought books upon its supposed credit, he would thereby impose a personal liability on himself. On the other hand, if he had no agency in obtaining the credit for the-corporation; in other words, if some other person bought or ordered the books, and he, without any new eonsidera<tion, gave his note for books thus purchased or ordered' by another, such note would be within the statute of frauds, and void.—Hester v. Wesson, 6 Ala. Rep. 415; Bullock v. Ogbourn, 13 Ala. Rep. 346 ; Holt v. Robinson, 21 Ala. Rep. 106.

The evidence leaves.these questions in doubt; and they should have been referred to the jury.

Reversed and remanded.